Boldly Going- Lawyers & Star Trek

Star Trek is one of the most successful and enduring science fiction stories of the last 45 years. In addition to heroic tales of making a cannon out of natural elements around you, many of the stories touched on deeper issues. One is Court Martialfrom the Star Trek The Original Series.

Court Martial

In the episode, Captain Kirk is charged with perjury and negligence in the death of a shipmate during an ion storm.

Specifically, Kirk claims he jettisoned a pod with Lt. Commander Ben Finney in it after going to Red Alert; the ship’s computer log shows Kirk jettisoned the pod, thus killing Finney, before going to Red Alert.

The alleged motive is that Lt. Commander Finney and Kirk used to be close friends. Finney had even named his daughter Jamie after Kirk (James to Jamie is better than some permutation of Tiberius). However, the two friends were estranged because years before Ensign Kirk corrected and logged an error Finny made while on the USS Republic that would have resulted in the Republic’s destruction. Finney’s career did not recover, with him being passed over for promotion.

During a verbal confrontation with Commodore Stone investigating the incident, Kirk demands a court martial when the Commodore effectively proposes that Kirk’s career and honor be swept under the rug with a ground assignment over the death of Finney.

Beam Down the Prosecutor

The trial focuses on a key theme of man verse machine. However, there are some immediate problems that cause lawyers to raise one eyebrow:

The Prosecutor is Lt. Areel Shaw, a woman Kirk had a relationship with years earlier (knowing Kirk, most likely physically and emotionally intimate. Moreover, any relationship with Kirk was life altering for any woman, for she forever knows any other man in her life will only be second best to Jim Kirk).

Lt. Shaw actually refers to Kirk in the bar scene as “dear old love.”

A bigger ethical issue is when Kirk met with Shaw with phasers set to charming, Shaw did not immediately disclose she was the JAG officer building the case against Kirk.

It is generally frowned upon for former girlfriends to prosecute former boyfriends, especially meeting them without counsel present. While Kirk did consent to her prosecuting the case, it might cause others to raise conflict of interest questions.

Finally, Lt. Shaw had a very bad habit of asking long leading questions on the direct examination of her own witnesses. This is perhaps because the witnesses were Spock and Dr. McCoy, so she could have been treating them as “hostile witnesses.” However, it went against the trial practice of having the witness do 90% of the talking on direct examination.

Samuel T. Cogley, Attorney at Law

When Kirk meets his defense attorney Samuel T. Cogley, a quirky old fashioned lawyer in the 23rd Century played by Elisha Cook, Jr., the lawyer has moved into Kirk’s quarters on the Star Base to prepare for trial.

Cogley is introduced surrounded by law books (inducing some law school flashbacks for some attorneys, while some others say, “Hey, that’s my office”).

Cogley states his preference for books over using the computer for legal research when Kirks comments computers take less space then books. This was decades before Lexis and West Law started giving law students free legal research accounts. ARPANET had not even been built yet (the episode aired in 1967 and ARPANET established in 1969). iBooks was still A LONG way off. Once again, Star Trek predicted a technology that is commonly used today: computer-assisted legal research.

Kirk Verses The Computer

The key issue in the case against Captain Kirk was that the Enterprise Computer could not be wrong. Kirk statements and the visual record did not match, therefore resulting in a man verse machine debate.

We hold today that records from a computer are presumed accurate. For example, as one California Court recently stated over the admissibility of photos from a red light camera:

Evidence Code sections 1552, subdivision (a) and 1553 establish a presumption that printed representations of computer information and of images stored on a video or digital medium are accurate representations of the computer information and images they purport to represent. Thus the images and information (including the date, time, and location of the violation and how long the light had been red when each photograph was taken) imprinted on the photographs are presumed to accurately represent the digital data in the computer.

However, a party can (and should if the facts support it) offer evidence that a computer or program was not operating or used correctly (such as cases involving red light cameras or formulas in Excel files).

As for our story, the evidence against Kirk is grim. Highly leading questions from the Prosecutor on direct examination of Spock introduce the computer records; equally leading questions on McCoy showed motive, because it was possible Kirk did not like Finney because Finney did not like Kirk (based on Finney being denied rank advancement).

However, what is never discussed until the conclusion of the case is the possibility the computer was tampered with by someone. Spock finds the “evidence” of this tampering after winning five games of Chess against the computer.

In today’s world of computer forensics and eDiscovery, a computer expert could find evidence of tampering with the ship’s log. That is the sort of thing computer forensic examiners do professionally. However, writers could only foresee so much in 1967.

There are some wonderful quotes from Samuel T. Cogley in demanding the cross-examination of the USS Enterprise computer. One was “I speak of rights. A machine has none. A man must!” Here is selected text from the argument scene:

I’d be delighted to, sir. Now that I’ve got something HUMAN to talk about. Rights, sir! Human rights! The Bible, The Code of Hammurabi, and of Justinian, Magna Carta, The Constitution of the United States, Fundamental Declarations of the Martian Colonies, The Statutes of Alpha III. Gentlemen, these documents all speak of rights. Rights of the accused to a trial by his peers, to be represented by counsel, the rights of cross-examination; but, MOST importantly, the right to be confronted by the witnesses against him – a right to which my client has been denied.

////

And I repeat, I speak of rights! A machine has none. A man must. My client has the right to face his accuser, and if you do not grant him that right, you have brought us down to the level of the machine! Indeed, you have elevated that machine above us! I ask that my motion be granted. And more than that, gentlemen – in the name of a humanity fading in the shadow of the machine – I demand it. I demand it!

The proceedings were in turned moved to the USS Enterprise.

In short order, Finney is found alive after clearing the ship of the entire crew and listening for heartbeats.

Finney faked his death as a means of revenge on Kirk to ruin the Captain’s career.

As required by tradition and precedent, Kirk saved the Enterprise by climbing into a Jefferies Tube, after his shirt was ripped in the fight with Finney.

Star Trek on Rights

Court Martial has wonderful eDiscovery and computer forensic issues, in addition to the concept of cross-examination of a machine. Today, such a cross-examination would be conducted by an attorney on the human being who either programed the computer or engaged in the computer analysis. After all, we presume computers work correctly. It is up to the human lawyer to challenge any data with a human witness.

The episode also has a very beautiful subtext that can easily be overlooked in the 21 Century: the commanding officers presiding over the court martial are of different nationalities. In 1967, showing a future where people only saw people as people was a wonderful message. Today, it could be easily overlooked because that is how we expect everyone to be treated.

And finally, Lt. Areel Shaw. Women were approximately three percent of the lawyers in the United States in the 1960s. Seeing a woman serving as a JAG officer who could go to the brink of conviction, plus throw down argument with defense counsel, was a bold view of lawyers in the future in 1967.

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Josh Gilliland is a California attorney who focuses his practice on eDiscovery. Josh is the co-creator of The Legal Geeks, which has made the ABA Journal Top Blawg 100 Blawg for 2013 to 2016, the ABA Web 100 for Best Legal Blog and Podcast categories, and was nominated for Best Podcast for the 2015 Geekie Awards. Josh has presented at legal conferences and comic book conventions across the United States. He also ties a mean bow tie.

[…] treatment of women in the practice of law is very admirable. The 1967 Original Series episode Court Martial depicted Lt. Areel Shaw as a strong prosecutor who argued her case against Captain Kirk with force […]